Parallelism in EU and US Competition Law
New Horizons in Competition Law and Economics series
Chapter 4: The first stage of EU oligopoly control: shaping the category of collective dominance
Continuous harmonization between ex ante and ex post enforcement has characterized the evolution of collective dominance. At the very beginning, the case law on abuses of collective dominance played a guiding role in the evolution of this category, as Courts were more familiar with enforcement of art. 102 than with merger control. When the focus of antitrust enforcement shifted onto merger control, it was in this area that Courts and Commission developed new methods for addressing collective dominance and, then, expanded those advances to abuses of collective dominance. As the EU Commission and Courts have played a crucial role in this evolutionary process, the following analysis about the development of collective dominance is based primarily on case law. Flat Glass is recognized as the first judgment about collective dominance in the modern sense. It involved the flat-glass market, a tight and poorly competitive oligopoly, with a low rate of technological innovation, high start-up investments, and demand stagnation. The three flat-glass manufacturers, who controlled the entire market, had established mechanisms of information and product exchange, with the aim of increasing market transparency and impeding competition on product differentiation. Market analysis and evidence of anticompetitive conduct supported the conclusion that the companies concerned enjoyed a collective dominant position and abused their market power by engaging in parallel behaviour (publication of identical price lists, alignment on discount rates, and price agreements), which infringed, at the same time, art. 101 and art. 102. Albeit the inference of two infringements, the Commission decided to impose only one fine, based on art. 101.
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